Sipps v. Unemployment Comp. Bd. of Review

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matt Sipps, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 564 C.D. 2017

Respondent : Submitted: March 8, 2018

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY

JUDGE COVEY FILED: March 26, 2018

Matt Sipps (Claimant) petitions this Court for review of the

Unemployment Compensation (UC) Board of Review’s (UCBR) April 4, 2017 order

affirming the Referee’s decision, as modified, denying Claimant UC benefits under

Section 402(e) of the UC Law (Law).1 Essentially, Claimant presents one issue for

this Court’s review: whether the UCBR erred by concluding that Claimant committed

willful misconduct.2 After review, we affirm.

1

Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §

802(e) (referring to willful misconduct).

The modification was due to the Referee’s erroneous citation to Section 402(b) of the Law.

On appeal, the UCBR corrected the Referee’s order “to reflect [Claimant’s] ineligibility under

Section 402(e) of the Law.” UCBR Dec. at 1.

2

Claimant’s Statement of the Questions Involved contains seven questions, all of which are

subsumed in the stated issue and discussed herein. Specifically, Claimant argues that the UCBR

erred by: (1) failing to liberally construe the Law; and, by determining that (2) Claimant did not

immediately report his arrest; (3) Claimant’s delay impeded G4S Secure Solutions’ (Employer)

legitimate business interests; (4) Employer’s rule was necessary to its legitimate interests; (5)

Claimant engaged in conscious wrongdoing; (6) Claimant violated Employer’s reporting policy;

and, (7) Employer was prejudiced by Claimant’s report timing. See Claimant Br. at 1-3.

Claimant was employed by G4S Security Solutions (Employer) as a full-

time security officer from January 9, 2012 through December 4, 2016. Employer

provides 24-hour security for State Farm. See Certified Record (C.R.) Item 10, Notes

of Testimony, February 17, 2017 (N.T.) Ex. 13 at 10. On January 13, 2012, Claimant

acknowledged Employer’s Security Officer Handbook policy that “[g]rounds for

[i]mmediate [d]ismissal” include “[f]ailure to report immediately an arrest . . . to your

supervisor.” N.T. Ex. 13 at 2; see also N.T. Exs. 10, 14-17.

On December 5, 2016, Claimant was arrested on criminal charges and

held in Delaware County prison until he was released at approximately 10:00 p.m.

that day. On December 6, 2016, Employer learned from a news report that Claimant

had been arrested. At approximately 7:30 p.m. that same day, Claimant notified

Employer of his arrest. Employer discharged Claimant for violating its arrest

reporting policy.

Claimant applied for UC benefits. On January 19, 2017, the Erie UC

Service Center determined that Claimant was not eligible for UC benefits pursuant to

Section 402(e) of the Law. Claimant appealed and a Referee hearing was held on

February 17, 2017, at which Claimant appeared pro se. On February 22, 2017, the

Referee affirmed the UC Service Center’s determination. Claimant appealed to the

UCBR. On April 4, 2017, the UCBR adopted and incorporated the Referee’s

findings and conclusions, as modified, and affirmed the Referee’s decision. Claimant

appealed to this Court.3

Initially,

3

“Our scope of review is limited to determining whether constitutional rights were violated,

whether an error of law was committed, or whether the findings of fact were unsupported by

substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.

Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).

Claimant is represented by counsel on appeal.

2

Section 402(e) of the Law provides that an employee is

ineligible for [UC] benefits when his unemployment is due

to discharge from work for willful misconduct connected to

his work. The employer bears the burden of proving willful

misconduct in a[] [UC] case. Willful misconduct has been

defined as (1) an act of wanton or willful disregard of the

employer’s interest; (2) a deliberate violation of the

employer’s rules; (3) a disregard of standards of behavior

which the employer has a right to expect of an employee; or

(4) negligence indicating an intentional disregard of the

employer’s interest or a disregard of the employee’s duties

and obligations to the employer.[4]

Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747 n.4 (Pa.

Cmwlth. 2000) (citation omitted; emphasis added).

Where willful misconduct is based upon the violation of a

work rule, the employer must establish the existence of the

rule, its reasonableness, and that the employee was aware of

the rule. Once employer meets this burden, the burden

shifts to the claimant to prove that the rule was

unreasonable or that he had good cause for violating the

rule.

Weingard v. Unemployment Comp. Bd. of Review, 26 A.3d 571, 574-75 (Pa. Cmwlth.

2011) (citation omitted). “A claimant has good cause if his . . . actions are justifiable

and reasonable under the circumstances.” Grand Sport Auto Body v. Unemployment

Comp. Bd. of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (quoting Docherty v.

Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)).

Ultimately, “[t]he question of whether conduct rises to the level of willful misconduct

is a question of law to be determined by this Court.” Scott v. Unemployment Comp.

Bd. of Review, 105 A.3d 839, 844 (Pa. Cmwlth. 2014).

4

Claimant’s arguments notwithstanding, Employer need only prove one of the types of

misconduct, and there is no requirement that Employer prove prejudice, disruption of its legitimate

business interests, or that Claimant’s off-duty conduct would impact his employment. Moreover,

Claimant’s failure to immediately report his arrest constituted willful misconduct, not his arrest or

the basis thereof.

3

In the instant matter, Claimant does not dispute that Employer had a

policy relative to immediately reporting an arrest, that he was aware of it, or that it

was reasonable. It is also uncontested that Claimant notified Employer of his arrest

on the evening of December 6, 2016. Thus, at issue here is whether, under these

specific facts, Claimant “immediately” reported his arrest to Employer as required by

Employer’s policy and, if not, whether Claimant had good cause for failing to do so.

At the hearing, Employer’s human resources representative Leslie

Frescatore (Frescatore) testified that Claimant’s employment was terminated because

he failed to immediately report his December 5, 2016 arrest. She recounted that

Employer became aware of Claimant’s arrest on December 6, 2016 based on news

reports.5 See N.T. at 6. Frescatore explained that Claimant or anyone on his behalf

could have reported Claimant’s arrest directly to his supervisor, to Employer’s local

office during business hours, or to Employer’s corporate office in Florida that would

have answered the phone after hours and emailed the local office.6 See N.T. at 7.

Claimant testified that he worked on December 4, 2016, and was not

scheduled to work again until Wednesday evening, December 8, 2016.7 He recounted

that he was incarcerated for approximately eight hours following his December 5,

5

The record is not clear about precisely when on December 6, 2016 Employer became

aware of the news story. In an attempt to establish timing, Claimant attaches to his brief for this

Court’s consideration a screen shot of an ABC news report about Claimant’s arrest. However,

“[t]his Court may not consider any evidence that is not part of the certified record on appeal.” Pa.

Tpk. Comm’n v. Unemployment Comp. Bd. of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009).

Because the screen shot was not part of the record before the UCBR, we will not consider it.

6

Frescatore expounded that if Claimant had notified the person to whom he placed his one

permissible telephone call (i.e., family, friend or counsel) to inform Employer about the arrest, and

the individual did so, “[Claimant] would have been put on administrative leave . . . [p]ending the

outcome of the investigation.” N.T. at 5.

7

“[W]e may take judicial notice of the day upon which a date falls[.]” Mentz v.

Unemployment Comp. Bd. of Review, 370 A.2d 1232, 1233 (Pa. Cmwlth. 1977). According to the

2016 calendar, December 7, 2016 was a Wednesday.

4

2016 arrest, and was released at approximately 10:00 p.m. after he posted bail.8, 9 See

N.T. at 8, 11. Claimant testified he was aware of Employer’s policy, see N.T. at 10,

but asserted he could not report his arrest to Employer on December 5th because he

did not have a cell phone or access to a telephone during the time he was

incarcerated. See N.T. at 8, 10. He admitted that he had access to a telephone and

used a computer after his December 5th release, and acknowledged that calling

Employer would take only five minutes. See N.T. at 11. Claimant reported that he

nevertheless notified Employer of his arrest on December 6th between 7:00 p.m. and

8:00 p.m. See N.T. at 9.

8

Claimant stated in his brief that he was “detained for approximately 12 hours (from

approximately 10[:00 a.m.] until approximately 10[:00 p.m.])” Claimant Br. at 16.

9

On appeal, Claimant objects to the Referee’s admission of the police report into the record.

However, at the hearing, Claimant expressly told the Referee that he had no objection to its

admission. See N.T. at 3. Before this Court, Claimant argues that the Referee “should have elected

to sua sponte exclude[] . . . [it] . . . from the record to ensure fairness to [C]laimant.” Claimant Br.

at 15. Although the law requires that a referee must act reasonably in assisting a pro se claimant to

develop facts necessary for the referee to render a decision, see Hackler v. Unemployment Comp.

Bd. of Review, 24 A.3d 1112 (Pa. Cmwlth. 2011), “the referee is not required to become and should

not assume the role of a claimant’s advocate.” McFadden v. Unemployment Comp. Bd. of Review,

806 A.2d 955, 958 (Pa. Cmwlth. 2002). This Court has ruled that “[t]he referee need not advise an

uncounseled claimant on specific evidentiary questions or points of law, nor need the referee show

any greater deference to an uncounseled claimant than that afforded a claimant with an attorney.”

Brennan v. Unemployment Comp. Bd. of Review, 487 A.2d 73, 77 (Pa. Cmwlth. 1985) (citation

omitted).

We acknowledge that “[h]earsay evidence, [a]dmitted without objection, will be given its

natural probative effect and may support a finding of the [UCBR], [i]f it is corroborated by any

competent evidence in the record[.]” Walker v. Unemployment Comp. Bd. of Review, 367 A.2d 366,

370 (Pa. Cmwlth. 1976). Moreover, under Pennsylvania Rule of Evidence 803(25), a party’s out-

of-court admission is an exception to the hearsay exclusion. This Court has long held “that words

of a party constitute an admission and therefore may always be used against him.” Evans v.

Unemployment Comp. Bd. of Review, 484 A.2d 822, 826-27 (Pa. Cmwlth. 1984). This exception is

based upon the fact that, unlike hearsay, a party’s admission is personal first-hand knowledge, and it

may support a referee’s finding of fact. Braun v. Unemployment Comp. Bd. of Review, 506 A.2d

1020 (Pa. Cmwlth. 1986).

In this case, although the Referee admitted the police report, it does not appear that the

Referee relied upon Claimant’s arrest record in reaching his decision. Rather, the Referee and the

UCBR based their determination upon Claimant’s representations regarding his arrest details.

5

Claimant explained that he did not call his supervisor on the morning of

December 6th because he was not scheduled to work until Wednesday and, in the

meantime, he prioritized what he had to accomplish to comply with the judge’s

orders, such as filing paperwork and finding a lawyer. See N.T. at 9-11. When asked

why he did not contact his supervisor after his 10:00 p.m. release on December 5th,

Claimant maintained:

C Well, sometimes he’s hard to get a hold of. He doesn’t

answer right away, and especially at nighttime. I was being

more considerate and concerned with him, because he has a

wife that’s basically indigent [sic] right now, and he’s . . .

R So…

C …taking care of…

R …why didn’t you send a text message or something?

C It doesn’t go through because he lives in an area where

he doesn’t get cell reception, and it’s -- other officers know

about that, so . . .

R All right. [Inaudible] following day, in the morning . . .

C Correct. I did it within 24 hours.

N.T. at 11-12. Claimant contends that he complied with Employer’s policy, since his

understanding of “immediately” is “as soon as possible,” and “reporting [his arrest]

within 24 hours [of his release wa]s considered immediately.” N.T. at 10; see also

C.R. Item 12 at 3.

Based upon the evidence, the Referee made the following relevant

findings, which “represent[ed] the competent evidence and [the Referee’s] credibility

determinations[:]” Referee Dec. at 2.

3. [Claimant] was or should have been aware of

[Employer’s] policy regarding reporting arrest[s]

immediately as they occur.

6

4. On December 6, 2016, [Employer] received a report in

the local news that [Claimant] was incarcerated.

5. [Employer] discharged [Claimant] for violating its policy

regarding reporting incarceration.

Referee Dec. at 1-2.

The law is well-established:

[T]he [UCBR] is the ultimate fact-finder in [UC] matters

and is empowered to resolve all conflicts in evidence,

witness credibility, and weight accorded the evidence. It is

irrelevant whether the record contains evidence to support

findings other than those made by the fact-finder; the

critical inquiry is whether there is evidence to support the

findings actually made. Where substantial evidence

supports the [UCBR’s] findings, they are conclusive on

appeal.

Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.

Cmwlth. 2008) (citations omitted). This Court has explained:

Substantial evidence is relevant evidence upon which a

reasonable mind could base a conclusion. In deciding

whether there is substantial evidence to support the

[UCBR’s] findings, this Court must examine the testimony

in the light most favorable to the prevailing party, . . .

giving that party the benefit of any inferences which can

logically and reasonably be drawn from the evidence.

Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.

1999).

Here, the UCBR clarified:

Finding of [F]act 4 is amended to state, ‘[Claimant] was

arrested on the morning of December 5, 2016.’

Additionally, the [UCBR] finds that [Claimant] was

released from incarceration at 10:00 p.m. on December 5,

2016, and [Claimant] waited until approximately 7:30 p.m.

on December 6, 2016, to report his arrest. Finally, the

[UCBR] finds that [Employer’s] facility is open 24 hours

per day.

7

UCBR Dec. at 1. Based on the modified factual findings, the UCBR declared:

[Claimant] failed to follow [Employer’s] known policy

regarding the immediate reporting of an arrest.

Specifically, [Claimant] was arrested on the morning of

December 5, 2016. [Claimant] was released from

incarceration at 10:00 p.m. on December 5, 2016, and

[Claimant] waited until approximately 7:30 p.m. on

December 6, 2016, to report his arrest. Because [Claimant]

waited nearly 24 hours from the time he was released and

nearly 48 hours from the time of his arrest to report his

arrest to [Employer], . . . [Claimant] violated [Employer’s]

policy. [Claimant] failed to present good cause for his

violation.

UCBR Dec. at 1. Because substantial record evidence supports the UCBR’s findings

and conclusions, they are conclusive before this Court.

This Court acknowledges that Employer’s policy did not define

“immediately.” Moreover, there is little case law on the subject. However, the

Pennsylvania Superior Court has held:

The word ‘immediate’ in the contract must be construed to

mean within a reasonable time thereafter, under all the facts

and circumstances of the case; and what is a reasonable

time must be decided by the [fact-finder], unless . . . the

delay has been so great that the court may rule it as a

question of law.

Jackson v. Am. Auto. Ins. Co., 164 A. 116, 117 (Pa. Super. 1933) (quoting People’s

Mut. Accident Ass’n v. Smith, 17 A. 605, 606 (Pa. 1889)). Notably, in Claimant’s

appeal from the Referee’s decision to the UCBR, Claimant agreed that

“‘immediately’ is subject to a reasonableness standard under the given

circumstances[.]” C.R. Item 12 at 3.

In Myers v. Unemployment Compensation Board of Review, 625 A.2d

622 (Pa. 1993), our Supreme Court declared that the employer’s accident reporting

policy did not require a claimant to act “immediately” thereafter, but nevertheless

opined that the claimant “immediately” reported the accident where he drove with a

8

co-worker (also involved in the accident) from the accident scene to a telephone and

stood next to the co-worker as the co-worker reported it, and then claimant personally

reported the accident upon his return to his employer within 12 hours of the

accident’s occurrence.

Whether Claimant acted “immediately” in accordance with Employer’s

policy depended upon Claimant’s specific circumstances, as determined by the

UCBR, which found Claimant’s rendition of why he did not report his arrest before

7:30 p.m. on December 6, 2016 not credible. Moreover, there is no record support

for Claimant’s position that the policy’s purpose is to ensure shift coverage, and since

he notified Employer of his Monday (December 5th) arrest on Tuesday (December

6th) evening before his Wednesday night (December 7th) shift, he acted immediately.

Rather, substantial evidence supports the UCBR’s findings that Employer had a

reasonable policy of which Claimant was aware, yet Claimant consciously chose not

to take a few minutes to comply with the policy until nearly 24 hours after his

release. Under circumstances in which Claimant deliberately violated Employer’s

arrest reporting policy without proven good cause, the UCBR properly determined

that Claimant’s discharge was due to willful misconduct and, thus, he is ineligible for

UC benefits under Section 402(e) of the Law.

For all of the above reasons, the UCBR’s order is affirmed.

___________________________

ANNE E. COVEY, Judge

9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matt Sipps, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 564 C.D. 2017

Respondent :

ORDER

AND NOW, this 26th day of March, 2018, the Unemployment

Compensation Board of Review’s April 4, 2017 order is affirmed.

___________________________

ANNE E. COVEY, Judge